Statement of Senator Patrick Leahy

Introduction of the "Inducing Infringement of Copyright Act of 2004"

June 22, 2004

 

 

MR. LEAHY: Nobody can deny that the digital age has brought many
benefits and many challenges to all of us.  

 

In my home state of Vermont, the Internet has revolutionized how we work
and how we learn:  Distance learning brings the best teaching tools
right into rural communities, and new business models let Vermont
businesses reach new and far-flung customers.  As suppliers who use the
Internet, we enjoy access to a range of goods and services unimagined
when I was growing up, and the vast panoply of information and
entertainment offerings on the World Wide Web are at the fingertips of
many Vermonters.  Of course, we must work to ensure that everyone can
reap the benefits of the digital age, and I am striving both here in
Washington and in my state to do what is necessary to bring affordable
and reliable Internet access to every household.  

 

I am confident that, with continued focus and perseverance, the day of
universal access is coming and we will all take part in the many
advantages of the digital age.  But there are other problems that
require immediate attention, because they threaten the development of
the web.  We will never be able to make the Internet an entirely
trouble-free zone, but we will also never be justified in failing to
make efforts to defend and improve it.  

 

One important effort to improve it is the bill that I am proud to
introduce today - along with Senators Hatch, Daschle, Frist, Boxer, and
Graham of South Carolina - the "Inducing Infringement of Copyright Act
of 2004." 

 

The "Inducing Infringement of Copyright Act of 2004" is a
straightforward bill.  Our legislation treats those who induce others to
violate copyrights as infringers themselves.  This is not a novel
concept; it is the codification of a long-standing principle of
intellectual property law: that infringement liability reaches not only
direct infringers but also those who intentionally induce illegal
infringement.  And while the legal principle is an old one, the problems
of inducement for copyright are a relatively new byproduct of the
digital age - an age in which it is easy (and often profitable) to
induce others to violate copyrights through illegal downloading from the
Internet.  

 

The principle at the heart of this bill - secondary copyright liability
-- has long been in the common law.  In fact, such secondary liability
is provided for by statute in the patent law.  The patent code provides
liability for inducing infringement and for the sale of material
components of patented machines, when the components are not a staple
article of commerce suitable for substantial non-infringing use.  This
is because it has long been relatively simple and economically
worthwhile to induce patent infringement.  By contrast, until recently
the ability to illegally download music, books, software, and films has
not existed.  Recent developments, however, now make it necessary for
Congress to clarify that this principle also applies to copyrights.  

 

What the inducement bill does not do is just as important as what it
does:  It does not target technology.  Useful legislation on this topic
must address the copyright issue and not demonize certain software.  As
a practical matter, if a law is targeted at certain software, the
designers will simply design around the law and render it useless.  And
as a matter of effectiveness, if the law addresses only well-understood
present threats, it will necessarily be too narrow to encompass future
technologies that may pose the same threat to copyrights.  A law that
deals simply with the copyrights - and their violation - is far less
likely to be circumvented or out-dated before it can do any good.  It
will be both broad enough and sufficiently flexible to accommodate
situations we cannot foresee.

 

This legislation is also carefully crafted to preserve the doctrine of
"fair use."  Indeed by targeting the illegal conduct of those who have
hijacked promising technologies, we can hope that consumers in the
future have more outlets to purchase creative works in a convenient,
portable digital format.  Similarly, the bill will continue to promote
the development of new technologies as it will not impose liability on
the manufacturers of copying technology merely because the possibility
exists for abuse.  Finally, the bill will not affect Internet service
providers who comply with the safe harbor provisions of the Digital
Millennium Copyright Act.

 

Copyright law protecting intellectual property is one of the taproots of
our economy and of our creativity as a nation.  For copyright law to
work as the Founders intended, it needs effective enforcement.  That
means adapting enforcement tools to meet new challenges, in the digital
age or in any age.  And that is the straightforward purpose of this
bill. 

 

I would like to take a moment also to emphasize another important, if
obvious, point about this bill that some detractors have ignored.  The
law only penalizes those who intentionally induce others to infringe
copyrights.  Thus, the makers of electronic equipment, the software
vendors who sell email and other programs, the Internet service
providers who facilitate access to the Web - all of these entities have
nothing to fear from this bill.  So long as they do not conduct their
businesses with the intention of inducing others to break the law - and
I certainly have not heard from anyone who makes that claim - they
should rest easy.  The only actors who have anything to fear are those
that are already breaking the law; this bill simply clarifies and
codifies that long-standing doctrine of secondary liability.

 

The "Inducing Infringement of Copyright Act of 2004" is a simple fix to
a growing problem.  The bill protects the rights inherent in creative
works, while helping to ensure that those same works can be easily
distributed in digital format.  

 

I ask unanimous consent that a copy of this bill be printed in the
RECORD.    

 

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